At the City Journal, Nicole Gelinas has a good article on takings under New York's overbroad definition of blight. Whether or not you favor this kind of economic development taking, doing it under a blight justification strikes me as completely dishonest.

Possession is a foundational idea in property law. Recent scholarship has suggested that respect for possession may be an innate aspect of human behavior. Jeffrey Evans Stake argued in 2004 that there is an evolutionary basis for an instinct to respect possession. More recently, Ori Friedman and Karen Neary have published the results of psychological studies suggesting that both adults and children tend to associate prior possession with ownership. These studies suggest that the respect for possession that is at the center of our property law may be consistent with – and, indeed, may have its basis in – basic human behavioral tendencies.

In this Essay, I consider the relevance of this behavioral research to normative issues in property law. Along the way, I discuss the broader issue of the potential relevance of biological facts about human behavior to the law. I argue that facts about actual human behavior, like those discussed in Friedman & Neary’s research, are potentially relevant to property and other legal issues. In contrast, I argue that evolutionary arguments like those made by Stake are not relevant to property or other legal issues. I criticize Stake’s evolutionary argument on two levels. First, I argue Stake’s evolutionary claims lack evidentiary support and fail to connect in subtle but important ways with substantive property law. Second, drawing in part on arguments recently developed by Brian Leiter and Michael Weisberg, I argue that evolutionary facts, even if scientifically well founded, have little or no relevance to normative legal issues, in property or otherwise.

Ben Barros

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Florida International University College of Law invites applications from candidates for one or more visiting faculty positions beginning in Fall 2010. Areas of curricular preference include Property, Criminal Law, Torts, Environmental Law, And Trusts and Estates. Visits could be for either the fall or spring semester or for the full year.

ABOUT FIU COLLEGE OF LAW:

Part of Miami's public research university, the College of Law is a dynamic urban law school with approximately 600 students. FIU College of Law was established in 2000, enrolled its first class in 2002, and currently has 30 full-time faculty members. In the spring of 2007, the FIU College of Law moved into a new state-of-the-art building at the heart of the main university campus. Over the past two years, our FIU on-campus community has been enriched through the addition of a new medical school and the construction of the Frost Art Museum.

The FIU community and the College of Law are strongly committed to the pursuit of excellence and the goal of ensuring opportunities within the legal profession for individuals who represent different groups as defined by race, ethnicity, gender, sexual orientation, socioeconomic background, age, disability, national origin, and religion.

APPLICATION PROCEDURE:

Applicants should have a J.D. degree; applicants with additional advanced degrees are also encouraged to apply. Applicants must possess a strong commitment to teaching and a record or the promise of outstanding scholarship. Applicants interested in joining the FIU College of Law faculty as a visiting faculty member should send a cover letter expressing interest and a resume to:

Florida International University encourages applications from candidates who would continue to enhance the diversity of our College of Law faculty and university community and does not discriminate on the basis of race, color, national origin, ancestry, sex, disability, religion, age, sexual orientation or veteran status in its education and employment programs or activities. FIU is also a member of the State University System and an Equal Opportunity, Equal Access, Affirmative Action Employer.

Thanks to Nancy McLaughlin (Utah) for providing the post below. As many of you are aware, Nancy is a leading expert on conservation easements. She isn't actually a PropertyProf, but we won't hold that against her.

Ben Barros

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After over six years of litigation, a case involving a Wyoming county’s attempted termination of a perpetual conservation easement has settled, with the conservation easement remaining in full force and effect on the burdened land.

Background

In 1993, Paul and Linda Lowham donated a conservation easement as a tax-deductible charitable gift to the Board of County Commissioners of Johnson County, Wyoming, for the purpose of preserving and protecting in perpetuity the conservation values of a 1,043-acre ranch located in the county. The Lowhams claimed a large federal charitable income tax deduction based on the estimated value of the easement. The Board later transferred the easement to the Scenic Preserve Trust, a § 501(c)(3) organization created and governed by the Board.

In 1999, the Lowhams sold the land, subject to the perpetual easement, to the Dowds. The Dowds were aware they were purchasing the land subject to a perpetual conservation easement. The Dowds were also aware that a third party owns the minerals underlying the land and, as is common in the west, the third party has the right to reasonable access to the surface of the land to extract its minerals. When an energy company later prepared to drill for coalbed methane on the land, the Dowds requested that the Board terminate the conservation easement. The Board passed a resolution in which it agreed to do so, and then executed a quitclaim deed transferring the conservation easement to the Dowds for purposes of terminating the easement. The Board received no compensation for the termination of the easement, and no determination was made that the mineral development had or would render the continued protection of the land’s conservation values “impossible or impracticable.”

In 2002, a resident of the county, Hicks, filed suit alleging, inter alia, that the Board breached its fiduciary duties to both the easement donor and the public by agreeing to terminate the conservation easement without court approval obtained in a cy pres proceeding. Hicks also argued that the minimal drilling that had occurred on the property had not rendered continued protection of land’s conservation values impossible or impractical. As it turned out, the ranch was not a good place for coalbed methane development, and the impact of the limited drilling on both the conservation and development values of the land was minimal. The Wyoming Attorney General was notified of this case and given the opportunity to intervene, but declined to become involved, explaining that “the interests of the public, as the beneficiaries of the conservation easement,” were already being represented by the litigants.

In 2007, the Wyoming Supreme Court dismissed Hicks’s case on the ground that Hicks, a mere resident of the county, did not have standing to sue. The court, however, invited the Wyoming Attorney General, as supervisor of charitable trusts in the state of Wyoming, to reassess his position with regard to the case. See [Hicks v. Dowd, 157 P.3d 914 (Wyo. 2007)]. For an NPR story on the case up to this point, see http://www.npr.org/templates/story/story.php?storyId=88038482.

In the summer of 2008, the Wyoming Attorney General responded to the Wyoming Supreme Court’s invitation and filed suit against the Board and the Dowds. Like Hicks, the Wyoming Attorney General argued that the Board had violated its fiduciary duties by agreeing to terminate the conservation easement without court approval obtained in a cy pres proceeding. The Attorney General requested that the Board’s attempted termination of the conservation easement be declared null and void. The Attorney General and some conservation organizations were also concerned that the Board’s actions, if upheld, could render conservation easements in Wyoming nondeductible. Federal tax law requires that the conservation purpose of a tax-deductible conservation easement be “protected in perpetuity.” I.R.C. § 170(h)(5)(A). For their part, the Dowds argued that “[t]here is nothing special about a conservation easement when it comes to termination,” and that conservation easements can be modified or terminated by simple agreement of the then owner of the land and the government or nonprofit holder of the easement.

Settlement

While the Motions for Summary Judgment in the case were pending, the parties to the case agreed to settle. On February 10th, 2010, the District Court Judge signed a Stipulated Judgment [Download Stipulated Judgment Salzurg v Dowd] approving the settlement, which declares that:

(i) the resolution passed by the Board was of no legal effect insofar as it purported to authorize the Board to transfer the conservation easement to the Dowds;

(ii) the Board’s quitclaim deed purporting to transfer the conservation easement to the Dowds was null and void and of no effect; and

(iii) the original deed of conservation easement remains in full force and effect with minor amendments as set forth in the Judgment. See [Stipulated Judgment]

The settlement represents a victory for the Wyoming Attorney General as well as the public, which is investing heavily in what it assumes are perpetual conservation easements. It also represents a victory for conservation easement donors, who are willing to significantly reduce the value of their land in large part because of a strong personal connection to—and the promise of permanent protection of—that land.

For a recent article discussing the case and including relevant portions of the Wyoming Attorney General’s Motion for Summary Judgment as an Appendix, see Nancy A. McLaughlin & W. William Weeks, Hicks v. Dowd, Conservation Easements, and the Charitable Trust Doctrine: Setting the Record Straight, 10 Wyo. L. Rev. 73 (2010) [Available at http://ssrn.com/abstract=1542648].

It has been a while since we've blogged here about virtual property. Forbes.com has a story about a 27-year-old graduate student from Australia who paid $26,500 for an island in the virtual world Entropia. It seems like a good deal for him -- he apparently makes over $100,000 per year off of the island.

Thanks to my student Ulysses Wilson for the pointer.

Ben Barros

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In previousposts, I discussed some of the Lockean ideas about property reflected in HBO's television series Deadwood. In this post, I'd like to focus on what the show suggests about the tensions that arise when property rights acquired in a state of nature meet the regulatory force of positive law.

If the first season of Deadwood helps demonstrate, however imperfectly, Lockean ideas about property and the social compact, then the second season suggests what might happen when the social compact actually begins to take shape. As I mentioned in my second post in this series, uncertainty about the future prompts Deadwood to seek out some type of formal government to better secure its rights. Although this decision initially has an air of insincerity about it, there seems to be an understanding on the part of both those inside and outside the camp that some type of government must come. Deadwood’s residents reluctantly acquiesce to this realization as the best hope for securing their property and, with it, their freedom. Those outside of Deadwood, however – those on whom the promise of stability and government ultimately depend – have different understandings.

The second season of the show revolves in large part around the actions of two newcomers to the camp -- a representative of the Dakota territory and a geologist employed by notorious gold tycoon, George Hearst. In many ways, these two characters and the actions they take can be viewed as representing a more positivist outlook than is revealed by Deadwood’s leaders. Where the initial residents look back to days when the first few settlers fashioned the camp out of the surrounding wilderness, these newcomers see the camp’s future as a part of the Dakota Territory and the United States, with all of the social implications that such a relationship entails. As Season Two unfolds, the viewer learns that both men are corrupt exploiters of the first order, and it is clear that getting the camp’s gold into their hands (or the hands of those whose bidding they do) is of primary importance. But this shouldn’t completely overshadow the larger reality. Once legitimated, Deadwood will serve several important social functions, from a strategic military outpost to a burgeoning center of “civilization” in the heart of Indian country. And the gold, too, will serve important functions, bolstering the financial stability and influence of the territory, serving as a catalyst for investment and economic activity, and providing the means by which the camp might indeed be transformed into a town. For these outsiders, the gold in Deadwood ultimately means progress. Thus, with the prospect of law still in nascent form, the gold to which the camp owes its existence is evolving from a thing acquired by the hard work of autonomous individuals to a complex engine of social change and transformation. In short, property becomes less about the relationship of a person to a thing than about social relationships between a person and other people.

For this transformation to take place, however, the property rights in the gold must be susceptible to redefinition so as to accommodate the new order. In this regard, the territorial representative posts a public notice in the camp containing classic doublespeak: in one sentence, it indicates that the preexisting gold claims will be presumed valid, while in the next sentence, it says that presumption is subject to qualification by the territorial officials. Although it seems to acknowledge Deadwood’s preexisting property regime, the notice really suggests that any rights acquired under that regime are subject to alteration by the territorial government. Property, in this view, is not some indissoluble right of the natural order. Rather, echoing a positivist viewpoint, the notice implies that property is a construction of the law that is designed to meet specific societal contexts. As those contexts change, so too does property. Property is, in other words, a bundle of legal rights, the existence and definition of which depend on how the law is structured and restructured over time. In this view, as the unruly mining camp of Deadwood transforms into a civilized member of the Dakota Territory, it is only to be expected that the rights and relationships that make up the bundle will undergo some transformation as well.

To some degree, this seems to be a natural outworking of Locke’s social compact. Once individuals consent to unite in political society, they necessarily must be viewed as surrendering some of the privileges and freedoms they enjoyed apart from that society. Locke himself noted that once an individual consents to government, he also submits his person and possessions to the positive legislation adopted by that government. “[I]t would be a direct contradiction,” Locke wrote, “for anyone to enter into society with others for the securing and regulating of property; and yet to suppose his land, whose property is to be regulated by the laws of the society, should be exempt from the jurisdiction of that government, to which he himself, the proprietor of the land, is subject.” To escape the evils presented by the state of nature, one must give up some of the freedoms of the state of nature; to do otherwise would be a denial of the social compact itself. Applied to our story, if Deadwood wants the benefits of territorial membership, then it must live by the rules the territory promulgates, including those regulating property.

The independent residents of Deadwood naturally chafe at this idea, and their discomfort is only made worse by the machinations of the two newcomers, who use the law not only to regulate the prior relationships but to turn them completely on their heads. The threat posed by the notice creates panic and further instability in the camp, facts that the geologist exploits to work a redistribution of the gold claims for his employer, Hearst, at a fraction of what they would be worth in a more settled market. And as the gold steadily changes hands, the balance of power in Deadwood starts shifting. More on that, and what the show suggests about the relationship between property and power, in the next post.

Mike Kent

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Tanya Marsh, who has blogged with us before, will be joining the faculty of Wake Forest this fall. Congrats! Tanya will also be blogging with us again, and may have some things to say about every law prof's favorite topic, the AALS hiring process.

Ben Barros

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